Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240415 DOCKET: M54811 (COA-23-CV-1348) Harvison Young, Coroza and Gomery JJ.A.

BETWEEN

Mariette Matos Applicant (Respondent/Moving Party)

and

David Driesman Respondent (Appellant/Responding Party)

Counsel: Michael Polisuk, for the moving party Natacha R. Leite, for the responding party

Heard: April 3, 2024

Reasons for Decision

[1] The appellant father, David Driesman, has brought an appeal against an order made following an uncontested trial (the “Order”). The proceeding in which that Order was made was initiated in 2015 by the respondent mother, Mariette Matos, who sought to change the final order for child support for the parties’ two children made in 2010 by Mesbur J. (the “Motion to Change”).

[2] The mother has brought a motion to quash the appeal. The heart of her motion is that the father, in light of the fact that his pleadings were struck in the Motion to Change, lacks standing to appeal the Order. The father opposes the motion, arguing that his appeal has merit and should therefore be allowed to proceed.

[3] For the reasons that follow, the motion is allowed and the appeal is quashed.

Background

[4] It is neither necessary nor possible to summarize these proceedings in any detail for the purposes of this motion. It is fully reflected in the extensive record of materials filed since the parties’ separation in 2007. Since then, there have been numerous court appearances in which a persistent, underlying and continuing theme has been the father’s repeated failure to comply with his court-ordered obligations of disclosure and payment of child support.

[5] The duration of these proceedings is brought into stark relief by the fact that the two children, who were roughly 8 and 4 years old when their parents separated, are now adults, with the oldest in medical school in the United States and the youngest in undergraduate studies.

[6] The facts that are pertinent to this motion to quash relate to the 2015 Motion to Change.

[7] On September 24, 2015, the mother brought the Motion to Change to address the continuation of child support. The Motion to Change requested that the father pay a minimum of $1,000 per month for special and extraordinary expenses related to the children’s York School, extracurricular activities and summer camp.

[8] On September 22, 2017, Paisley J. struck the father’s pleadings due to his failure to comply with earlier disclosure orders. His appeal of this order was dismissed: Matos v. Driesman, 2018 ONCA 660. This resulted in an uncontested trial of the Motion to Change.

[9] The motion judge imputed $240,000 in income to the father for the calendar year 2015, rising by 3% cost of living each year thereafter. He awarded the mother $505,783.85 in arrears for s. 7 expenses related to the York School, extracurricular activities, summer camp and university expenses for the children. The father has brought an appeal of this Order.

Positions of the Parties

[10] The mother argues that the father has no standing to bring the appeal. Relying on this court’s decision in Lamothe v. Ellis, 2022 ONCA 789, 79 R.F.L. (8th) 8, she argues that courts will not typically hear appeals from uncontested trials. While she acknowledges that this is not an ironclad rule, she argues that there are no exceptional circumstances that would justify hearing the appeal in this case.

[11] The father opposes the motion, arguing that while it is true that this court typically will not hear an appeal from an uncontested proceeding, it may nevertheless choose to do so in cases where the appeal has merit, involves a question of law, or where it appears that an injustice has been done.

[12] The father relies on Freedman v. Freedman, 2022 ONSC 4823, at para. 17, where the court held that “[i]n an uncontested trial the moving party may only seek relief claimed and served in the proceeding in which the responding party’s pleadings have been struck.” He argues that while the mother claimed very specific s. 7 expenses in the 2015 pleadings in the Motion to Change, the motion judge granted s. 7 expenses relating, among other things, to university expenses for the children. Despite numerous court proceedings between the time the Motion to Change was filed in 2015 and when it was heard in 2023, the mother never sought to amend her pleadings to claim these specific expenses.

[13] In response, the mother argues that the father knew that s. 7 expenses relating to university expenses were at issue in the Motion to Change. She argues that the father was clearly aware the children were enrolled in post-secondary education, based on his submissions before Nishikawa J. in a different motion to change filed in the interim. The mother claims that this distinguishes this case from Freedman.

[14] Furthermore, the mother argues that the father’s argument, taken to its logical end, would require parties to amend their pleadings every time s. 7 expenses change. Given that children’s needs change as they grow older, this would be unmanageable and would turn the family law system on its head.

[15] Having heard the parties’ submissions and reviewed the extensive record in this matter, we are satisfied that the motion to quash should be granted on the basis that the father, having had his pleadings struck, has no standing to appeal the Order. There are no exceptional circumstances that would justify this court making an exception in this case.

Analysis

[16] The narrow and determinative issue before this court is whether the fact that the father’s pleadings have been struck precludes his right to appeal.

[17] This court in Lamothe, at para. 3, held that it “will not typically hear an appeal by a party from an unopposed proceeding” because “[p]articipation in an appeal after an uncontested trial has been ordered can circumvent that order, contrary to the interests of justice.”

[18] The court in that case recognized, at para. 3, that there may be exceptions to this rule where the issues raised in the appeal have clear merit or show that an injustice has been done.

[19] The father relies on Freedman, in which the court found that a party in an uncontested trial can only seek relief claimed and served in the proceeding.

[20] In our view, this case is distinguishable on the basis that Freedman involved claims for entirely different heads of relief. In Freedman, the mother had initially sought spousal and child support, division of property and equalization. During oral argument, she sought an order adding various individuals and companies to the proceeding for enforcement purposes, as well as an order awarding the mother damages: para. 18. The trial judge found that these claims had not been pleaded and therefore could not be granted: see paras. 18 and 82.

[21] In contrast, in this case, the mother has not attempted to claim any new heads of relief. Her 2015 pleadings in the Motion to Change requested s. 7 expenses. While the types of s. 7 expenses have changed as the children have grown older, she has not attempted to argue for any new relief. The allegedly new heads of relief are not new. They simply reflect the evolving nature of the sorts of expenses associated with raising and educating children, which the court below accepted as reasonable and necessary in the circumstances of this family.

[22] As a result, we do not agree that the motion judge granted relief that was not requested in the mother’s pleadings.

[23] Furthermore, we agree with the mother’s submission that to require parties to submit a new application or amend their pleadings any time a s. 7 expense changed would be an unreasonable burden.

[24] In any event, we also agree that it is clear from the record that the father was aware that university expenses were at issue. In a motion to change brought by the father before Nishikawa J., he referenced the oldest child’s university tuition when arguing that he was unable to continue to pay child support and s. 7 expenses.

[25] The father’s pleadings were struck for his failure to comply with his disclosure obligations. As the Supreme Court of Canada has emphasized recently, disclosure is the linchpin on which fair child support depends: Colucci v. Colucci, 2021 SCC 24, [2021] 2 S.C.R. 3, at para. 48.

[26] Allowing the father to bring this appeal would permit him to undermine and circumvent the Order, affirmed by this court, denying him the ability to engage directly with the issues in this case due to his non-disclosure. To permit this would, in our view, be contrary to the interests of justice.